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Ontario court ruling on expats forgets that voting is a right, not a privilege

MICHAEL PAL

Special to The Globe and Mail

Published July 22, 2015Updated May 15, 2018

Michael Pal is an assistant professor in the University of Ottawa's Faculty of Law.

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This week, the Court of Appeal for Ontario ruled 2-1 in Frank v. Canada that it is constitutional for the federal government to take away the right to vote from Canadian citizens who live outside the country for more than five years. That a court would allow the government to set an "expiration date" on one of our most fundamental rights is deeply troubling.

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The practical effect is that more than one million citizens will be banned from voting on Oct. 19, barring some last-minute legal manoeuvring.

Frank rests on dubious legal footing in permitting the government to treat non-residents as second-class citizens. The Charter of Rights and Freedoms guarantees the right to vote to "every citizen" in Section 3 in clear and unambiguous language. The text draws no distinction on where you live. Citizenship was included by the drafters of the Charter as a limit on who could vote, but not residence. The government conceded that the five-year rule violated the right to vote.

The majority of the Court of Appeal upheld the five-year ban as constitutional, however, because the government met its burden under Section 1 of the Charter to justify why it was limiting the right. This conclusion is surprising because the government had only the flimsiest of justifications to offer. Rights can be limited by Parliament, but only for good reasons. None were presented here.

A review of Parliament's deliberations reveals that it provided no plausible rationale for why non-residents' right to vote should be restricted or why five years was the expiration date.

Frank treats voting as a privilege that can be taken away, rather than as a fundamental right deserving of the highest protection from courts. The majority rested its conclusions on the idea of a "social contract." The justices reasoned that voting is guaranteed only for those who are affected by the laws passed by our elected representatives. Even if you are a citizen, by residing abroad you are not affected by Canadian laws to the same extent and do not bear the same responsibilities of citizenship. On this view, non-residents have withdrawn from the "social contract" and forfeited their democratic rights.

The majority relies on the Supreme Court of Canada's decision in Sauvé v. Canada to uphold the ban. This is a head-scratcher. Sauvé granted the right to vote to prisoners. It stands as the most uncompromising defence of the right to vote in the Charter era. Frank seemed upon its launch like a surefire winner for the claimants because of the unambiguous precedent set by Sauvé.

Ontario Justice John Laskin's dissent is a scathing rebuke and a high point in the Canadian defence of voting rights. He rightly points out that the government furnished no evidence of a "social contract," despite the courts being provided more than 9,000 pages of evidence. Justice Laskin also took the unusual, but in my opinion more than justified, step of finding that the government had no compelling and substantial purpose to offer for its decision.

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Since the right to vote was constitutionally guaranteed in 1982, the few remaining restrictions on voting by Canadian citizens have been almost entirely swept away, which is one of the great accomplishments of the Charter. The decision in Frank is squarely at odds with that legacy. The ban on non-resident voting is the last major restriction left. An appeal to the Supreme Court seems likely.

Let us hope that the country's highest court will stand up for the right to vote, as it has so often.

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